Appeal from the Board of Immigration Appeals.
Cummings, Chief Judge, and Wood and Coffey, Circuit Judges.
WOOD, Jr., Circuit Judge.
Petitioner Rene Carvajal-Munoz, a 37-year-old native of Chile and a former citizen of Argentina,*fn1 seeks review of an order by the Board of Immigration Appeals ("BIA") denying his application for asylum under section 208 of the Immigration and Nationality Act ("Immigration Act"), 8 U.S.C. § 1158 (1982), and his application for temporary withholding of deportation under section 243(h) of the Immigration Act, 8 U.S.C. § 1253(h) (1982). At the time of his last entry into the United States on June 12, 1979, near Del Rio, Texas, petitioner was a citizen of Argentina. Because petitioner entered the country as an alien without an immigration visa and without inspection by an immigration officer, the Immigration and Naturalization Service ("INS") charged petitioner with deportability under section 241(a)(2) of the Immigration Act, 8 U.S.C. § 1251 (1982). At a deportation hearing occurring on September 25, 1980, and resumed on November 13, 1980, petitioner admitted the allegations in the order to show cause, except that regarding his citizenship, and conceded deportability. The immigration judge found him deportable based on these admissions, and denied his requests for asylum and withholding of deportation. The immigration judge concluded that petitioner had failed to establish a clear probability that his life or his freedom would be threatened in either Argentina or Chile, and gave petitioner thirty days to voluntarily depart the United States or thereafter be deported to Argentina. Petitioner's administrative appeal to the BIA, an agency of the Department of Justice, was denied. Because we find that petitioner has not met his burden of establishing that he qualifies for asylum or withholding of deportation, we affirm the BIA's order.*fn2
The Immigration Act provides two procedural paths by which deportable aliens presently within the United States may remain here to avoid persecution in another country on account of race, religion, nationality, membership in a particular social group, or political opinion. Petitioner invoked both of these paths. The first path is to apply for a grant of asylum pursuant to section 208 of the Immigration Act, 8 U.S.C. § 1158 (1982), which may be done at any time, including during or after deportation proceedings. The second route is to apply for a temporary withholding of deportation pursuant to section 243(h) of the Immigration Act, 8 U.S.C. § 1253(h) (1982), once the alien has been found deportable and a country of deportation has been designated. Although the two paths are closely related and appear to overlap, they involve different procedures, provide different forms of relief, and place different burdens of proof on the alien. In addition, asylum relief is discretionary, while deportation relief, which protects against deportation to a specific country, must be granted to qualified applicants.
Asylum claims were formerly outside the jurisdiction of an immigration judge, but an alien may now have both forms of relief considered by an immigration judge in a deportation proceeding. Requests for the two types of relief, however, should be treated separately. The BIA has stated that "as we have only quite recently acquired jurisdiction over asylum claims, we are only just now beginning to resolve some of the problems caused by this addition to our jurisdiction, including the problem of determining exactly how withholding of deportation and asylum are to fit together." In re Lam, Interim Dec. No. 2857, slip op. at 6 n.4 (BIA Mar. 24, 1981). To further clarify and resolve some of the problems relating to the two provisions, we begin by describing them in more detail.
A. Applications for Asylum under Section 208.
With the enactment of the Refugee Act of 1980 ("Refugee Act"), Pub. L. 96-212, 94 Stat. 102, Congress for the first time established a provision in federal law specifically relating to requests for asylum.*fn3 Section 201(b) of the Refugee Act created a new section 208 of the Immigration Act directing the Attorney General to
establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien's status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 101(a)(42)(A) of this title.
8 U.S.C. § 1158(a) (1982). Section 101(a)(42)(A) of the Immigration Act defines a refugee as
any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
8 U.S.C. § 1101(a)(42)(A) (1982).
As the Supreme Court noted in INS v. Stevic, 467 U.S. 407, 104 S. Ct. 2489, 81 L. Ed. 2d 321 (1984), however, "meeting the definition of refugee . . . does not entitle the alien to asylum -- the decision to grant a particular application rests in the discretion of the Attorney General under § 208(a)," 8 U.S.C. § 1158(a) (1982). Id. at 2497 n. 18. The discretion vested in the Attorney General is delegated to the district director having jurisdiction over the alien's port of entry or, if he or she is already in the United States, the alien's place of residence, unless an alien has been served notice of referral to exclusion proceedings or served an order to show cause for deportation proceedings. In these circumstances, exclusive jurisdiction over an asylum application lies with the immigration judge handling the exclusion or deportation proceeding. See 8 C.F.R. § 208.1 (1984). Even if the district director denies an application for asylum made before the institution of exclusion or deportation proceedings, the applicant may renew his or her request for asylum before the immigration judge in subsequent exclusion or deportation proceedings. Thus, "an alien who wishes to apply for asylum can get two bites at the apple. . . ." Jean v. Nelson, 727 F.2d 957, 981 (11th Cir. 1984) (en banc). Hearings before either the district director or immigration judge on an asylum application are to be made only after the Bureau of Human Rights and Humanitarian Affairs ("BHRHA") of the Department of State has given an advisory opinion, which is to be made part of the hearing record. See 8 C.F.R. §§ 208.7, 208.8(d), 208.10(b) (1984). The burden is on the asylum applicant
to establish that he/she is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of the country of such person's nationality or, in the case of a person having no nationality, the country in which such person habitually resided, because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
The regulations specify six situations in which the district director must deny asylum status, see 8 C.F.R. § 208.8(f)(i)-(vi) (1984),*fn4 and provide for no administrative appeals from the district director's decisions, see 8 C.F.R. § 208.8(c) (1984). In contrast, the regulations do not specify how an immigration judge is to make asylum decisions and contain no prohibition on the administrative review of those decisions. The BIA has indicated, however, that it will use the regulations addressed to the district director as "useful guidelines" in the exercise of the Board's own discretion over asylum requests. See In re Salim, Interim Dec. No. 2922, slip op. at 7 (BIA Dec. 29, 1982).
If the immigration judge grants an asylum request, it is for a period of one year. See 8 C.F.R. § 208.10(e) (1984). Thereafter, the applicant is interviewed annually to determine continuing eligibility for asylum or adjustment of status, which may include becoming a permanent resident. If the immigration judge denies asylum, the exclusion or deportation proceeding is to be reinstituted. See 8 C.F.R. § 208.10(f) (1984).
It is unclear whether we may directly review asylum decisions made by immigration judges in the context of deportation proceedings. Neither party has addressed the issue; both concluded that we had jurisdiction, although it appears to be a question of first impression.*fn5 We conclude that while asylum decisions by district directors may not be directly reviewed by the courts of appeals under the jurisdictional statute, section 106 of the Immigration Act, 8 U.S.C. § 1105a(a) (1982), see Fleurinor v. INS, 585 F.2d 129, 135-36 (5th Cir. 1978), asylum decisions made by immigration judges and reviewed by the BIA are subject to our direct review.
Jurisdiction to review "all final orders of deportation . . . made against aliens within the United States pursuant to administrative proceedings under [8 U.S.C. § 1252(b)]" lies exclusively in the courts of appeals. 8 U.S.C. § 1105a(a) (1982). The Supreme Court has held that, in order to minimize multiple review, the term "final orders of deportation" should be read to include not only the actual order of deportation, but all orders closely related to the deportation proceeding conducted pursuant to 8 U.S.C. § 1252(b) and entered during the proceeding, such as an order denying voluntary departure or an adjustment of status. See Foti v. INS, 375 U.S. 217, 11 L. Ed. 2d 281, 84 S. Ct. 306 (1963); see also Giova v. Rosenberg, 379 U.S. 18, 13 L. Ed. 2d 90, 85 S. Ct. 156 (1964) (per curiam). Ancillary determinations made outside the context of a proceeding under 8 U.S.C. § 1252(b), however, such as granting a stay of deportation, are not subject to direct review. Only matters "'intimately associated and immediately associated'" with the final order or "governed by the regulations applicable to the deportation proceeding itself, and . . . ordinarily presented to the special inquiry officer [immigration judge] who entered the deportation order" fall within the ambit of direct appellate review. Cheng Fan Kwok v. INS, 392 U.S. 206, 217, 20 L. Ed. 2d 1037, 88 S. Ct. 1970 (1968).
While we agree with the Fifth Circuit's decision in Fleurinor that asylum decisions made by the district directors are not directly reviewable by this court because they are not decisions made during a proceeding conducted under 8 U.S.C. § 1252(b), see 585 F.2d at 135-36; see also Haitian Refugee Center v. Smith, 676 F.2d 1023, 1033, 1035 (5th Cir. 1982), we see no problem with undertaking direct review of asylum decisions made by immigration judges in the context of deportation proceedings.*fn6 In Foti, the Supreme Court specifically recognized that changes in administrative regulations making certain decisions "an integral part of the deportation proceedings conducted by a special inquiry officer" (immigration judge) could bring such decisions, previously outside the scope of direct review by the courts of appeals, "within the reach of § 106(a)'s judicial review provisions." 375 U.S. at 230 n. 16. Similarly, the Court in Kwok quoted with approval excerpts from the legislative history of section 106(a) of the Immigration Act suggesting that there was "'no reason why the Immigration Service could not change its regulations to permit contemporaneous court consideration of deportability and administrative application for relief.'" 392 U.S. at 214 (quoting 105 Cong. Rec. 12728, remarks of Rep. Moore). In light of these congressional interpretations of the scope of the jurisdictional statute, we see no reason why asylum decisions, made by the same immigration judge rendering the deportation decision and entered in the course of administrative proceedings conducted under 8 U.S.C. § 1252(b), are not subject to direct review by the courts of appeals. Although one might argue that section 208 requests are technically not part of the deportation proceeding itself, direct review of these claims by the courts of appeals when decided by an immigration judge and appealed along with the deportation order and a withholding of deportation request promotes section 106's purpose of "preventing successive dilatory appeals to various federal courts. . . ." Foti, 375 U.S. at 226.
Since we conclude that section 106 of the Immigration Act allows us to review directly section 208 asylum decisions made by immigration judges in the context of deportation proceedings, our review is to be based "solely upon the administrative record upon which the . . . order is based and the . . . findings of fact, if supported by reasonable, substantial, and probative evidence on the record as a whole, shall be conclusive. . . ." 8 U.S.C. § 1105a(a)(4) (1982). The granting of asylum, however, is discretionary under section 208,*fn7 and ordinarily such a decision will be upheld unless it is found to be arbitrary, or capricious, or an abuse of discretion. We note, however, that the exercise of that discretion comes into play only after there has been a preliminary appraisal of refugee status, which involves an issue of fact. Because the abuse of discretion standard is not appropriate for reviewing factual findings regarding eligibility, see Lee v. INS, 541 F.2d 1383, 1385 (9th Cir. 1976) (citing Foti, 375 U.S. at 228-29), we hold that substantial evidence must support the finding regarding refugee status. See Sarkis v. Nelson, 585 F. Supp. 235, 237-38 (E.D.N.Y. 1984) (relying on dictum in Chun v. Sava, 708 F.2d 869 (2d Cir. 1983), to hold that "where the Board denies political asylum not as a matter of discretion, but as a result of its factual determination that petitioners have not demonstrated a well-founded ...